clr/1988/1988_1_302.pdf

(1988)1988May25 (PIKIS J) INTHE MATTER OFARTICLE 155.4 OFTHE CONSTITUTION AND IN THE MATTER OF AN APPLICATION BY (a} CHARALAMBOS A.AEROPOROS (

1. b)ANDREAS A AEROPOROS AND (
2. c)ANTONIS AEROPOROS, FOR AN ORDER OF CERTIORARI AND/OR PROHIBITION, AND IN THE MATTER OF THE HEARING OF CRIMINAL CASE 23069/87 WHICH IS PENDING FOR HEARING BEFORE THE ASSIZE COURT -OF LIMASSOL. (ApplicationNo. 9/88), Prerogative Orders—Certiorari—A discretionary remedy—Delay in applying—Consequences. Prerogative Orders—Certiorari—Procedureto be followed—Governed by oldEnglishRulesinforcepriortoIndependence—Justificationof adoption of thisrule—Failuretocomply withsuch EnglishRules— 5 Effect. Prerogative Orders—Certiorari—Procedure to be followed—No affidavits in addition to those filedin support of the application for leave may be filed without the leave ofthe Court. Prerogative Orders—Certiorari—It cannot be made for purposes of dictating to a Court how to uecide a matter withinitsjurisdiction— Admissibility of evidence—A matter within the province of a trial Court. 10 Criminalprocedure—Search Warrants/WarrantsofArrest—Presumption . ^ ofregularity. Prerogative Orders—Certiorari—Warrantsof arrest/Search Warrants— Insufficiency of evidence justifying theirissue—Whether review by certiorari possible—Doubtful. 302 1 C.L.R. InreAeroporos&Others 5 Havingobtained thenecessaryleave,theapplicantsapplied foran order of prohibition, restraining the Assize Court from proceeding with a cnminal case against the applicants, and for an order of certioran toquash twowarrants of arrest issued on 11 787 and four warrants ofsearch issuedbetween the 15th and 24th ofJuly, 1987 10 The applications were prompted bya rulingoftheAssizeCourt in another case issued in December, 1987 that such Court was not empowered to examine the validity of such warrants The ultimate purpose of the applications was to prevent the Assize Court from admittinginevidence matenalrecoveredbyreason ofsuch warrants 15 It must be noted that (
3. a)In the course of the heanng, the application forprohibition wasabandoned, and (b)The applications were not accompanied by the warrants in question duly certified by the Registrarofthe DistnctCourt,asprovidedby0 59,r8oftheOld English Rules The ground upon which the applicants relied was absence of evidential matenaljustifying the issue of the warrants in question 20 25 Held dismissing theapplication (\) Following the abandonment of the motion forthe issueofan order of prohibition, the substratum of the application has diasppeared with it The essence of the application was to restrain the holding of future proceedings and incidentally thereto toquash the warrants of arrest and search An order of certiorari isa discretionary remedy Delay to apply is a valid reason for refusing review of the legality of the order challenged In the absence of any wish on the part of the applicants to challenge the warrants pnor tothe said ruling of the Assize Court in another case m December, 1987 and the reasons for their wish to challenge them thereafter, the delay isinexcusable 30 35

(2)The application for leave to apply for certioran must be accompanied by an affidavit setting forth the facts relied upon The self sameapplication and affidavit oraffidavits must,following leave, be served on the respondents together with the summons In this case, two further affidavits accompanied the summons without pnor leave of the Court, Inany event theallegation astoabsence ofevidencejustifying the issueof the warrant remained unsubstantiated by evidence 40

(3)The admissibility of evidence is a matter exclusively within the provinceofatnalCourt Thequashing oftheordersismerelysought forthepurposes offorestalling a rulingcontrary totheposition ofthe 303 InreAeroporoe&Others

(1988)a(cused on the admissibility of evidence in pending criminal proceedings This is wholly impermissible and not a valid cause for seeking judicial review by way ofcertioran

(4)The argument of counsel that no presumption of regularity operates in favour of a search warrant and warrants of arrest cannot 5 be accepted The burden to establish the existence of error or irregulanty liable to render a judicial order invalid lies on the party who propoundsthe irregularity erroror omission

(5)NoRules of Courtwere ever enacted in Cyprus for the review of judicial action by way of certiorari Belore Independence the 10 procedural gap was filled by the provisions of s 51 of the Courtsof Justice Law 19/40 making applicable the practice and procedure observed inEngland Nosimilarprovision istobe found inthe Courts of Justice Law (14/60) The Supreme Court has consistently adhered to the rules 15 applicable in England at the time of the introduction of the Constitution The question in this case is whether non-compliance with particular provisions of English rules relevant to judicial review by way of certioraricanbe excused Theanswer isthatalotwill depend 20 on thenatureandproceduralrequirementinfringed The production of thejudicial warrants and theirverification is a prerequisite for the valid exercise of thepowers vested intheCourt Ιοreviewjudicial acts by way of certioran Theirproduction andvenficaton isaprerequisite for the valid exercise of the powers vested in the Court to review 25 judicial actsby way of certiorari Theirproductionand verification is essential for thedefinition of thesubject-matter of the proceedings

(6)Although it is unnecessary in this case to answer the question definitively, thisCourtentertainsreservations whetheritisfeasible in law to found certiorari proceedings for the review of a judicial 30 warrant by reference tothesufficiency of the evidential matenal that led to the issue of the warrant Different considerations may apply when the warrant isdefective onthe face of it Applications dismissed 35 Casesreferred to R ν Newington Licensing Justices [1948] 1 K B 681, Police ν Georghiades

(1982)2 C LR 33, Merthojaν Police

(1987)2 CLR 227, Re Mahkhdes and Others

(1980)1C LR 472, 304 1 C.L.R. InreAeroporos&Others R.v IRC exparteRossmmsterLtd [1979] 3 All E.R 3S5 l.R.C. v. RossminsterLtd. [1980] 1 All E.R. 80FrangosvMedicalDisciplinaryBoard

(1983)1 CL.R.

1. Ramadan v.ElectricityAuthorityofCyprusandAnother, 1 R.S.C.C.
2. 5 VassihouandAnotherv.DisciplinaryCommittee

(1979)1 CL.R 46 Schmuel v. The Officer in CommandIllegal Jewish Immigration CampKaraolos.lHC.[..R

1. Regina ν Peterborough Justices exparte Hicks andOthers [1977} 1W.LR. 1371; 10 Queen v.TilleitandOthers: ExParteNewton andOthers. 14 FL R
2. Application. Application for an order of prohibition to restrain the Assize 15 Court of Limassol from taking cognizance and hearing Criminal Case No.23069/87 until the determination of the validity of two warrants of arrest and four warrants of search Chr. Pourgoundes. for the applicants. Gl Hadjipetrou. for the respondents. 20 Cur. adv. vult. PIKISJ. read the following judgment. Inan application entitled «In the matter of the hearing of Criminal Case 23069/87, which is pending before the Assize Court of Limassol». made on 30.12.1987, Triantaryllides, P., as he then was, gave leave to 25 apply for an order of prohibition to restrain the Assize Court of Limassol from taking cognizance of and hearing the aforementioned case until determination of the validity of two warrants of arrest issued on 11th July, 1987, and 4 warrants of search issued between 15th and 24th July,
3. 30 Following the leave of the Court, a summons application was made for the issue of an order of prohibition and orders of certiorari respectively. On the directions of Triantafyllides, P..the application was served ontheChief of thePoliceandthe Registrar of the District Court of Limassol. There is no indication in the file 305 ( PlklsJ. In reAeroporos & Other·

(1988)signifying whether the application wasbrought tothenotice ofthe members of the District Court of Limassol who had issued the impugned warrants. The application was opposed by the Attorney-General on behalf of the Chief of the Police. The opposition isaccompanied 5 bytheaffidavits ofthree PoliceSergeantswhodeposed tothe facts preceding the issue of the search warrants. The application was listedfordirectionsbefore Triantafyllides, P.,on21stMarch,

1. In view of his impending retirement, on his appointment to the office of Attorney-General of the Republic, the case was 10 mentioned before Malachtos. J. On his directions the hearing of the application was referred to the Supreme Court following an application of the parties thatthe casebe taken bythe Full Bench. On 26th March,
2. directions were given by the Supreme Court that the case be tried by a single member of the Court in 15 view of the express provisions of Art. 155 of the Constitution safeguarding a right of appeal from a decision of the Court in exercise of its original jurisdiction. Furthermore, the case was assigned to me for trial. Inthe course of hisaddress counsel for the applicants explicitly 20 stated that the application forthe issue of an order for prohibition is abandoned. At the end of the address in support of the application I inquired of counsel whether theapplication could be proceeded with without amendment of the title, more so in the absence of any certain indication that the application had been 25 brought to the notice of those members of the District Court of Limassol who had issued the warrants; one of whom, it was pointed out served at the District Court of Nicosia atthe time that the application was served onthe Registrarofthe DistrictCourtof Limassol. Both counsel agreed that the amendment of the title 30 was necessary and an adjournment was granted in order to facilitate the submission of an application to amend. The application was opposed on the ground that it was not accompanied by the warrantsdulyverified by the Registrar of the District Court as required by Ord. 59, r.8, of the Rules of the 35 Supreme Court applicable at the time when the Constitution of Cyprus came into effect. Asimilar requirement is incorporated, counsel pointed out, in the English Rules currently in force*. The • See Halsbury's Laws ofEngland,4thEd., Vol.11,para,
3. 306 1 C.L.R. 5 In re Aeraporoe & Others PUds J. efficacy of the provisions of Ord 59, r8, and need for unfailing adherence thereto was stressed in R ν Newmgton Licencing Justices* Counsel for the applicants did not doubt the applicability of the relevant provisions of the English rules but argued (a) That the warrants need not be exhibited or verified in the application but at the trial and (b) The respondents waived the objection that they might be entitled to raise to their omission by failing to raise the matter in 10 their opposition I invited counsel towind up theirarguments on thementsof the application upon the supposition that the examination of the legality of the warrants was properly at issue by the application that was filed following leave of the Court I adopted this course in 15 order to save time considering that if the proceedings are otherwise viable, it would be difficult to refuse the application to formalize the proceedings in view of the directions given by Tnantafyllides, Ρ confining service upon the Registrar of .the District Court of Limassol 20 I have given close consideration to every aspect of the application and the opposition and to the arguments raised in support and against theapplication Theapplication isdoomedtn failure for a number of separate and independent reasons -

(1)Following the abandonment of themotion for theissueofat 25 order of prohibition the sub=*atum of the application ha^ disappeared with it The essence of theapplication was to restrain the holding of ft ire proceedings and incidental^ in.'uno quash the warrants of arrest and search warrants On account of this complexion of the case no attempt whatever was made to 30 explain the delay inapplying to quash oHers thatwere made five or more months pnor to the application Μ ^ave to apply to set them aside by way of ce< joran The delay is wholly unexplained except to the extent that counsel acknowledged that the application for judicial review was prompted by a ruling of the 35 Assize Court of Limassol in another case in which Mr Pourgoundes appeared, notably, Cnminal Case No 10592/87 given on 7th December, 1987 In fact the present proceedings were mounted for thesolepurpose of preventing theAssizeCourt •[194811KB 681 307 PikisJ. InreAeroporos& Others

(1988)•hat will trythecharge of premeditated murder upon which the applicants have been committed to trial from admitting in evidence supposedly incriminating material that surfaced in the execution ofthe warrants. An order ofcertiorari isa discretionary remedy. Delay toapply isavalid reason forrefusing reviewofthe 5 legalityofthe order challenged. The timeelement issoessentialas to have caused the English legislator toruleout judicial reviewfor the issueofan order ofcertiorari after the lapse ofsixmonths from the communication of theimpugned order*. Inthe absence of proper justification of the delay or more appropriately in the 10 absence ofany wish onthe part ofthe applicants tochallengethe legalityofthe orderspriorto7th December, 1987,andthe reasons for sowishing tochallenge itthereafter. Ifind thedelay toapply inexcusable andonthat account I would dismissthe application.

(2)The application for leave to apply for certiorari must be 15 accompanied byanaffidavit settingforth thefactsreliedupon.The self same application and affidavit or affidavits must, following leave,beserved ontherespondentstogetherwiththesummons** For the adduction of further affidavit evidence the leave ofthe Court is required. In this case the summons application was 20 accompanied by two affidavits additional to the one that supported theapplication forleave without the prior approval of the Court having first been obtained. Leaving this irregularity aside, theaffidavits, none ofthem, disclosed evidence supporting the absence of evidential material justifying the issue of the 25 warrants. The two affidavits to facts, one given by Michalis Aeroporos, a brother of theapplicants, andthesecond byNiki Panteli, a clerk attheoffice ofMr. Pourgourides, merely contain suppositionssuggestingabsence ofevidencejustifying theissueof the warrants andtheopinion ofcounsel astotheconsequences 30 thatthose assumptionswouldentailinlaw.Thereisatotalvacuum of evidential material tojustify theapplications. Such materialas we have before usrelevant tothe issue ofthewarrants coming from the deponents whomade theaffidavits accompanyingthe opposition, refute thesuppositions made bythe aforementioned 35 witnesses respecting the circumstances under which the orders were made. •R.S.C. Ord.53,r.2

(2). " Ord. 59,r.6,oftheOldRulesoftheSupreme Court-Simitar provisionsappearinthe new Rulessetout inOrder.53. 308 1 C.L.R. I n reAeroporos& Others PildsJ .

(3)The purpose for which the orders are sought, as counsel acknowledged, istoruleoutthepossibilityofadmission before the Assize Court of the evidential material that was recovered following the arrest of the applicants and the search of their 5 premises. If the warrants are quashed, the production of such evidence would, counsel submitted, be admissible on the authority of Police v.Georghiades*. The admissibility of evidence is a matterexclusively within the province of a trial Court for reasons that need no further 10 elaboration. The quashing of the orders is merely sought for the purposes of forestalling a ruling contrary to the position of the accused on the admissibility of evidence in pending criminal proceedings.Thisiswhollyimpermissible andnotaValidcause for seeking judicial review by way of certiorari. As Tnantafyllides. P. 15 pointed out inRe Malihdes & Others** «. . aprerogative order cannot be made for purposes of dictating to a Court in what manner is to decide on a matter within its jurisdiction». The true purpose of this applicationistoachieve just thatobjective, thatis, prejudge directly orindirectly anissueof admissibility of evidence 20 inpending criminal proceedings Theprincipalobject of thepresentproceedings isnottoimpugn the legality of the orders as such but to indirectly dictate to the Assize Courtdue totry a case of premeditatedmurderagainst the applicants toreject evidence seemingly consideredrelevantbythe 25 prosecution. This is yet another ground for dismissing the application.

(4)The essence of the argument of counsel was that no presumption of regularity operates in favour of a search warrant and warrants of arrest and that in every case in which they are 30 called intoquestion itisfor thosesupportingtheirvaliditytojustify their issuance by reference to the material that was adduced to support them. The submission is untenable and to my comprehension wrong in law. Itwas founded (theabove submission) primarily onthedecision 35 of theCourtof Appeal in/?.v.l.R.C.exparteRossminsterLtd***. In the course of argument Idid draw the attentionof counsel tothe fact, thatthe above decision was reversed on appeal as indeed it *

(1982)2C.L.R 33-See alsotherecentdecisionofMerthod)aν Police,

(1987)2C L.R. 227. ·*

(1980)1 C L.R. 472, at478 **r[1979]3AllΕR 385. 1309 PUdsJ. InreAeroporos&Others

(1988)was - l.R.C. v. Rossminster Ltd*. Contrary to the position put forward by counsel, it was held that a presumption operates in favour of the lawfulness of a search warrant and the valid exercise of judicial duties. The following passage from the judgment of Lord Diplock accurately depicts the position inlawon thesubject (p.91. letters D-E): 5 «Itisnot.inmyview, open toYourLordshipstoapproach the instant case on the assumption that the Common Serjeant did not satisfy himself on both these matters, or to imagine circumstances which might have led him to commit so grave 10 a dereliction of hisjudicial duties.The presurription isthat he acted lawfully and properly; and it is only fair to him to say that, inmyview,there isnothing inthe evidence before Your Lordships to suggest the contrary; nor. indeed, have the respondents themselves so contended». 15 The burden, therefore, to establish the existence of error or irregularity liable to render ajudicial orderinvalid liesonthe party who propounds the irregularity, error or omission. As earlier explained not an iota of evidence was adduced to substantiate allegations of irregularity. Whereas such affidavit evidence as has been adduced in support of the opposition tends to negative the existence of an irregularity. The warrants themselves, if at all permissible to consult photostatic copies of them, in the absence of the verification 25 envisaged by Ord. 59, r.8 {Old English Rules), do not reveal any error apparent on the face of them; the foremost ground upon which aCourtoflawmayinterfere bywayofcertiorariwithjudicial acts.

(5)Failure to comply with the necessary prerequisites for the 30 review of judicial warrants by way of certiorari is fatal to the justiciability of the complaint. The jurisdiction conferred on the Supreme Court byvirtue of theprovisionsof para. 4ofArt.155is the jurisdiction vested in the Judges of the High Court of England to issue prerogative writs, a fact duly acknowledged by the Full 35 Bench of the Supreme Court in Frangos v. MedicalDisciplinary Board**.Thejurisdiction must, ofcourse,be invokedand applied *[1980]1AllE.R. 80. *·

(1983)1C.L.R.

1. 310 20 1 C.L.R. I nre Aeroporos & Others PUds J . subject to the legal framework established by the Constitution. notably, the exclusive jurisdiction of the Supreme Constitutiona· Court to review administrative action*. As far as Iamaware noRules of Court were ever enactedn 5 Cyprusforthereviewofjudicialactionbywayofcertiorari.BefοreIndependence in Rudolf Schmuel v. The Officer in Command IllegalJewish ImmigrationCampKaraolos** .itwasheld that the procedural gapwasfilled bythe provisions ofs 51ofthe Courtsof Justice Law19/40 makingapplicable the practice and procedure 10 observed in England. No similar provision is tobe found in the CourtsofJustice Law (14/60).Theabove caseisinstructive in one other respect by underlining that thewrit of habeas corpus has more to do with the machinery of justice and less with the substantive law.The same can nodoubt besaid about the writ of 15 certiorari intended toensure thatjusticeisadministered according tolaw. 20 25 30 35 .The absence of rules of the Supreme Court regulating proceedings for the issue of prerogative writs hasnotprevented the Supreme Court from exercising thejurisdiction specifically assigned tothe Supreme Court byvirtue ofthe provisions ofArt. 155.
2. The Supreme Courthasconsistentlyadhered totherules applicable in England at the time of the introduction of the Constitution.Therationaleofthisapproachmaylieinthefactthat pregogative writs are legal remedies peculiar to English law, inextricably tied to procedural requirements and safeguards essentialforthedefinition andventilationofmattersatissue;orin theadoptionofEnglishrulesbytheSupremeCourtasamatterof properpracticefortheeffective exerciseofthejurisdictionvested by para. 4 of Art.
3. Counsel for the applicants in no way suggestedthat English Procedural Rules applicable tocertiorari proceedingsareinapplicable. Infact,theapplication isfashioned on those rules.What isatissueiswhether non-compliance with particularprovisionsofEnglishrulesrelevanttojudicialreview by way of certiorari can be excused.The answer is that a lot will depend on the nature and procedural requirement infringed. Where observanceoftheruleisfundamental totheexerciseofthe Court' sjurisdiction,asinthiscase,theCourtwillnotreadily suffer a relaxation. The production of the judicial warrants and their * HusseinRamadan v.ElectncifyAuthorityofCyprusandAnother, 1 R.S.C.C. 49- Vassiliou &Another v. Disciplinary Committee

(1979)1 C.LR.46. "18C.L.R.158 311 PildsJ. I n re Aeroporos & Others

(1988)verification isa prerequisite for the valid exercise of the powers vested in the Court to review judicial acts by way of certiorari. Their production and venfication isessential for the definition of the subject-matter oftheproceedings. FortheCourttoexerciseits jurisdiction intheabsence oftheaboverequisites,thefailure must 5 be duly accounted for asprovided inOrd.59, r.8.Inthiscase the justification offered by the affidavit of Mr. Agamemnonos, Registrar. District Court of Limassol, is confined to the nonproduction ofthe sworn statements thatwere made insupportof the application for the issue of the warrants. Consequently, the 10 failure to produce the relevant warrants duly verified remains unexplained. Nor can I regard thegapasfilled bycounsel making in the course of the hearing available to the Court photostatic copies ofthe warrants.

(6)Lastly, I mustrecord myreservations whether itisfeasible in 15 law to challenge ajudicial warrant of arrest or search exclusively by reference to the evidential material placed before the Court. Such recourse appears to me tosmack of an attempt to question the correctness of the order as opposed to itslegality, the basisof the jurisdiction upon which judicial orders may be reviewed by 20 way of prerogative writs. The decision inRegina v.Peterborough Justices exParte Hicks and Others* cited by counsel in support of the proposition that there is amenity to question warrants by reference to evidential material, does not establish any universal rule; nor can the 25 decision be extricated from thespecialfactsthatwarranted review in that case.Acrucial issue inthose proceedings was whether the seizure of documents inthe handsof solicitorsbywayof a search warrant was possible in law and whether privilege precluded seizure. It is appropriate to remind of the observations of Lord 30 Scarman inRossminster (supra -p.105,h-j) that: «The value of judicial review which ishigh, should not be allowed to obscure the fundamental limits of the judicial function». I must acknowledge that in Canada it is common practice to 35 review search warrants by reference tocollateral issues**. *[1977]1W.LR. 1371. **Seel*CivilActionsAgainstthePolice»byRichardClaytonandHugh Tomlinson. 312 1 C.L.R. In re Aeroporos & Others PiIdsJ. It must be noted, however, that in Canada there are specific provisions requiring that a warrant should contain detailed information concerning the material upon which itisbased and the circumstances in which it was given. Australian casestoo 5 suggestthatreview by way of certiorariispossible by reference to the evidential material upon which thewarrant is founded* Although itis unnecessary in this case to answer the question here debated definitively, for my part I entertain reservations whetheritisfeasible inlaw tofound certiorariproceedings for the 10 review ofajudicial warrant byreference to the sufficiency ofthe evidential material that led to the issue ofthe warrant. Different considerations may apply when the warrant is defective on the face of it. Forall theabove reasons the application is dismissed. 15 Application dismissed. ' See, interalia, Queen ν Tilleit&Others ExParteNewton &Others,14F LR 101 313